A JAILHOUSE LAWYER S MANUAL

Transcription

1 A JAILHOUSE LAWYER S MANUAL Chapter 34: The Rights of Pretrial Detainees Columbia Human Rights Law Review Ninth Edition 2011

2 LEGAL DISCLAIMER A Jailhouse Lawyer s Manual is written and updated by members of the Columbia Human Rights Law Review. The law prohibits us from providing any legal advice to prisoners. This information is not intended as legal advice or representation nor should you consider or rely upon it as such. Neither the JLM nor any information contained herein is intended to or shall constitute a contract between the JLM and any reader, and the JLM does not guarantee the accuracy of the information contained herein. Additionally, your use of the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at Columbia Law School. Finally, while we have attempted to provide information that is up-to-date and useful, because the law changes frequently, we cannot guarantee that all information is current.

3 CHAPTER 34 THE RIGHTS OF PRETRIAL DETAINEES * Pretrial detention is the time period that you are incarcerated between being arrested and your trial. Detention is only supposed to be used to ensure that the person will not flee prior to trial or pose a danger to other people. It is not supposed to be used to punish or rehabilitate that person. This is because as a pretrial detainee, you have not been convicted of a crime and are not guilty since under the U.S. Constitution, a person accused of a crime is presumed innocent until proven guilty. Because of this difference between pretrial detainees and convicted prisoners, you might think that detainees would retain greater rights and privileges than other incarcerated persons. Pretrial detainees, however, are rarely treated much differently than convicted prisoners. In many instances, the conditions at jails, where pretrial detainees are often held, are substantially worse than in state prisons. This Chapter covers your rights under the Fifth and Sixth Amendments of the U.S. Constitution after the police have deemed you a suspect. Part A discusses interrogation law and your Fifth Amendment right to counsel. Your Sixth Amendment right to counsel is discussed in Part B. Part C discusses bail and Part D discusses your right to a speedy trial. Part E covers the conditions of your pretrial detention, including punishment, medical treatment, protection from violence, food and housing, excessive force, access to counsel, and voting rights. This Chapter does not cover most search and seizure law under the Fourth Amendment, which determines when the police can legally arrest you or search you or your possessions. This area of law is complicated and beyond the scope of this Chapter. 1 Instead, this Chapter discusses your rights after the police have already detained you. It focuses specifically on interrogation law and your right to counsel under the Fifth and Sixth Amendments of the U.S. Constitution. If you are not a U.S. citizen, you also have a treaty right to communicate with consular officers from your home government. 2 If you have citizenship with some other country Chapter II of the JLM Immigration and Consular Access Supplement (ICA) is of special interest to you. It explains your right to consular access as well as the reasons why you may want to contact your consulate and reasons why you may not want to do so. Consular officers may be able to help you in criminal cases for example, they can gather mitigating evidence in death penalty cases. Your consular officers may also help you if your rights have been violated, and they will often assist you in deportation proceedings. That Chapter will give you some practical advice on when and how to contact your consulate. A. Your Rights During Investigation and Interrogation The U.S. Constitution protects you against compelled self-incrimination during a police interrogation 3, regardless of whether you are charged with a federal or state offense. 4 In other words, you cannot be forced to confess to a crime or any part of a crime. Your state constitution may also protect you, 5 but regardless of what protections the state constitution provides, the police must, at a minimum, satisfy the relevant federal tests. 6 Therefore, before you are interrogated, the police must always give you your Miranda warnings. 7 * This Chapter was revised by Julian Perez, based in part on previous versions by Jared Pittman, Sarah Abramowicz, Kai-lin Hsu, Christian Parker, Elif Uras, Erica Bazzell, and Julie Caskey. Special thanks to John Boston and Steven Wasserman of the Legal Aid Society for their valuable comments. 1. If you want to learn more about search and seizure law, a good overview is found in 1 Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure (4th ed. 2006). You should also read the cases regarding search and seizure law in your own state. 2. See JLM ICA Supplement, Chapter II The Right to Consular Access ; Vienna Convention on Consular Relations, adopted Apr. 24, 1963, art. 36, 21 U.S.T. 77, 596 U.N.T.S. 261). 3. The term Police here may include state agents such as jailhouse informants, i.e., fellow prisoners that are cooperating closely with and acting for the police. 4. U.S. Const. amend. V; see Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964) (holding that the states cannot abridge your 5th Amendment right against self-incrimination because the 14th Amendment makes the 5th Amendment applicable to states); Missouri v. Seibert, 542 U.S. 600, 607, 124 S. Ct. 2601, 2607, 159 L. Ed. 2d 643, 652 (2004) (noting that the 5th and 14th Amendment voluntariness tests are identical) (citing Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964))). 5. See, e.g., Cal. Const. art. I, 15, cl. 6; N.Y. Const. art. I, 6; Tex. Const. art. I, State constitutional standards may give you more protection than the U.S. Constitution. Read the cases that

4 932 A JAILHOUSE LAWYER S MANUAL Ch. 34 The exact nature of these warnings and when they apply is set forth in the next three subsections. In brief, under Miranda, you are entitled to a lawyer both before and during police custodial interrogation, and you have the right to refuse to answer any and all questions asked of you by the police. 8 If a proper Miranda warning has not been given and you have not waived your rights, any incriminating statements made by you during an interrogation cannot be used against you at trial. However, a statement taken in violation of Miranda can be used during your trial to impeach you (to cast doubt on your credibility), 9 as can any physical evidence obtained as a result of the statements you made Your Miranda Rights Your Miranda rights are: (1) the right to remain silent, since anything you say may be used against you in court; (2) the right to counsel, both before and during interrogation; and (3) the right to a free lawyer, if you cannot afford one. 11 You may have heard these warnings on TV shows, and many people can recite them by heart. However, even though the police on television always read the warnings to a suspect at the time of arrest, Miranda applies to interrogation, not arrest. Importantly, the U.S. Supreme Court has ruled that there are no special words which the police must say in order to satisfy their constitutional obligations. As long as the police explain all of your rights to you, they have complied with Miranda. 12 Furthermore, Miranda applies only during custodial interrogations. 13 Custodial in this case means either: (1) after you have been taken into police custody; 14 or (2) when you have been deprived of your freedom of movement. 15 Interrogation can be either: (1) direct questioning by the police; or (2) the functional equivalent of direct questioning. 16 It is considered interrogation whenever the police say or do something to you that they should know is likely to cause you to confess or say something incriminating. 17 interpret your state s constitution to find out what specific rights are guaranteed to you by the state. For an introduction to legal research, see Chapter 2 of the JLM. 7. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding that procedural safeguards are required to protect the 5th Amendment privilege against self-incrimination); see also Dickerson v. United States, 530 U.S. 428, 444, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 420 (2000) (holding that Miranda s warning-based approach to determining admissibility of a statement made by the accused during custodial interrogation was constitutionally-based, and could not be overruled by a legislative act). 8. Miranda v. Arizona, 384 U.S. 436, , 86 S. Ct. 1602, , 16 L. Ed. 2d 694, (1966). 9. Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (holding that the state may use previous statements for the purposes of impeachment even if the statements were obtained in violation of the detainee s Miranda rights). Contra State v. Santiago, 53 Haw. 254, 266, 492 P.2d 657, (1971) (rejecting Harris and finding state use of a statement obtained in violation of Miranda for impeachment purposes violated Hawaii Constitution). Note that Hawaii is the only state that does not follow Harris. 10. United States v. Patane, 542 U.S. 630, 634, 124 S. Ct. 2620, 2624, 159 L. Ed. 2d 667, 673 (2004) (holding that physical evidence obtained as a result of unwarned statements i.e. statements made without being told your Miranda rights is still admissible in court as long as the statement was voluntary). The statements leading to the discovery of the evidence still must have been made voluntarily. But see Com. v. Martin, 827 N.E.2d 198, 444 Mass. 213 (2005) (holding that Massachusetts state constitution prohibits law enforcement from using evidence obtained from unwarned statements); State v. Knapp, 285 Wis.2d 86, 700 N.W.2d 899, 2005 WI 127 (2005) (holding that where physical evidence is obtained as the result of an intentional Miranda violation, the Wisconsin state constitution requires that the evidence be suppressed). 11. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, (1966). 12. See California v. Prysock, 453 U.S. 355, , 101 S. Ct. 2806, 2809, 69 L. Ed. 2d 696, 701 (1981) (per curiam) (holding that Miranda warnings did not have to use precise language of the Miranda opinion as long as the warnings reasonably conveyed to a suspect his rights). 13. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). 14. Whether you are considered in custody depends on how a reasonable man in the suspect's position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984). 15. See Berkemer v. McCarty, 468 U.S. 420, , 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, (1984) (holding that an ordinary traffic stop, where the officer had decided that the suspect would be taken into custody as soon as he exited his car but did not tell the defendant of that decision, did not constitute custody for Miranda purposes). 16. Rhode Island v. Innis, 446 U.S. 291, , 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, (1980) ( [T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. ). 17. See Rhode Island v. Innis, 446 U.S. 291, 303, 100 S. Ct. 1682, 1691, 64 L. Ed. 2d 297, 309 (1980) (holding that a short conversation between policemen in front of a suspect was not the functional equivalent of interrogation, as a reasonable police officer would not think that the conversation would provoke an incriminating statement from the suspect).

5 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 933 Some law enforcement departments have developed a two-step interrogation technique to get around the Miranda requirements. They start by questioning the suspect without giving him the Miranda warnings until he confesses to committing the crime (this statement cannot be admitted in court except for impeachment purposes, to challenge the defendant s credibility). He is then given his Miranda warnings and the officer asks similar questions to try to get the suspect to give up the same information. 18 The suspect often confesses again, believing that since he already confessed once, there is no harm in doing so again. However, any suspect being questioned in this situation should be careful, because in some cases the second confession can be used against you. It is unclear whether the second, post-miranda confession is admissible due to a recent Supreme Court decision, Missouri v. Seibert, 19 and its relation to an earlier decision, Oregon v. Elstad. 20 The Court suggested that the proper test was an evaluation of how effective the Miranda warnings delivered midstream, actually were. 21 One concurring opinion instead thought the important question was whether the two-step interrogation was deliberately designed to get around the Miranda rule or instead resulted from decisions made in good faith by law enforcement officials. 22 Given this uncertainty, the most basic principle to remember is that sometimes it s not in your best interests to cooperate with questioning that occurs after you have received your Miranda warnings simply because you already made potentially incriminating statements. The earlier statements may not be admissible and you have a right to ask for and receive counsel. During any interrogation, your right to counsel is guaranteed under the Fifth Amendment. Your Fifth Amendment right to counsel is designed to protect you from self-incrimination. 23 Under Miranda, you are entitled to the advice of counsel before the interrogation and while the interrogation is taking place. If you ask for a lawyer, any interrogation should stop Voluntariness The confession you make to the police must be voluntary in order to be used at your trial. 25 The word voluntary may be confusing, however, because in this context what it actually means is something like not coerced. 26 Several things can make a court decide that your confession was not voluntary. The police cannot use 27 or threaten to use 28 physical violence in order to get you to confess. If the police threaten to administer 18. See Missouri v. Seibert, 542 U.S. 600, , 124 S. Ct. 2601, , 159 L. Ed. 2d 643, (2004) (plurality opinion) for a full discussion of the two-step interrogation and an example of this technique. 19. Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) (plurality opinion) (holding that the second confession, made after Miranda warnings, was not admissible in the circumstances of the case). 20. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222, 232 (1985) (holding that a second confession was admissible where the two-step process resulted from a simple failure to administer Miranda warnings, unaccompanied by actual coercion, and was later corrected by the giving of the Miranda warnings). 21. Missouri v. Seibert, 542 U.S. 600, , 124 S. Ct. 2601, , 159 L. Ed. 2d 643, (2004) (plurality opinion) (considering the most important factors to be the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, the degree to which the interrogator's questions treated the second round as continuous with the first, and any statements by the police officers to let the suspect know whether his statements made prior to the Miranda warnings would be admissible). 22. Missouri v. Seibert, 542 U.S. 600, 622, 124 S. Ct. 2601, 2616, 159 L. Ed. 2d 643, 661 (2004) (Kennedy, J., concurring in the judgment). 23. This is different from the 6th Amendment right to counsel discussed in Part B of this Chapter. The 6th Amendment right ensures that you have good representation once formal criminal proceedings have been initiated against you. 24. See Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 387 (1981) ( [I]t is inconsistent with Miranda for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. ). 25. See Miranda v. Arizona, 384 U.S. 436, 462, 86 S. Ct. 1602, 1621, 16 L. Ed. 2d 694, (1966) (holding that a confession must be excluded where the accused was involuntarily impelled to make a statement when but for the improper influences he would have remained silent. ). 26. See Colorado v. Connelly, 479 U.S. 157, 165, 107 S. Ct. 515, 521, 93 L. Ed. 2d 473, 483 (1986) (holding that there must be an essential link between coercive activity of the State and a resulting confession by a defendant if the evidence is to be excluded). 27. See Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936) (holding that the defendant could not be convicted on the basis of a confession obtained during a physical beating by a police officer); United States v. Abu Ali, 395 F. Supp. 2d 338, (E.D.Va. 2005), aff d, 528 F.3d 210 (4th Cir. 2008) (holding that evidence obtained by extreme physical coercion ha[s] no place in the American system of justice ).

6 934 A JAILHOUSE LAWYER S MANUAL Ch. 34 a painful medical procedure in an attempt to get you to confess, even though they may be legally entitled to order this procedure, the court may consider your subsequent statements to be involuntary. 29 Your confession may not be considered voluntary if it occurs after the police have interrogated you for a long period of time. 30 Likewise, confessions from detainees who have been deprived of food or sleep 31 have been deemed involuntary or if the interrogation room is in extremely poor condition, 32 courts may find your confession to be involuntary. In addition, the use of deception or promises of leniency in sentencing can sometimes make the confession involuntary. 33 If your confession is involuntary, that is, if it has been improperly compelled, it cannot be used at trial for any purpose Waiving your Miranda Rights If you waive (give up) your Miranda rights, the burden is on the prosecutor to show that you waived them voluntarily, knowingly, and intelligently. 35 If you never read or had your Miranda rights explained to you, then the prosecutor will have a hard time showing that you knowingly and intelligently waived them. If, after having your Miranda rights read to you, you assert your right to be silent, the interrogation must stop. 36 However, you must say that you are asserting your right to be silent. Simply remaining silent will not be considered enough to demonstrate that you have chosen to exercise your rights, and officers may continue interrogating you despite your silence until you make clear your choice to remain silent and no longer cooperate with the interrogation 37. If you ask for a lawyer during the interrogation, the interrogation 28. See Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, , 113 L. Ed. 2d 302, 316 (1991) (noting that a finding of coercion need not depend upon actual violence by a government agent, and a credible threat of physical violence is enough to find coercion); Colorado v. Connelly, 479 U.S. 157, 170, 107 S. Ct. 515, 523, 93 L. Ed. 2d 473, 486 (1986) ( The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on free choice in any broader sense of the word. ). 29. See, e.g., State v. Phelps, 456 N.W.2d 290, 235 Neb. 569 (1990) (holding that a rape suspect s confession, made after police described a painful penile swab procedure that would be unnecessary if suspect confessed, was involuntary). 30. See Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959) (finding a confession involuntary, in part, because the suspect was subjected to prolonged interrogation of almost eight hours); Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S. Ct. 921, 926, 88 L. Ed. 1192, 1199 (1944) (finding a confession to be coerced where suspect was questioned for thirty-six hours without sleep or rest). See also Mincey v. Arizona, 437 U.S. 385, 98 S. Ct L. Ed. 2d 290 (1978) (holding that the statements of a suspect were involuntary where an interrogation lasted for four hours while the suspect was severely injured). 31. See Stidham v. Swenson, 506 F.2d 478, (8th Cir. 1974) (holding a prisoner s confession to be coerced in part because he was denied food and water for a four-day period); Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S. Ct. 921, 926, 88 L. Ed. 1192, 1199 (1944) (finding a confession to be coerced where suspect was questioned for thirty-six hours without sleep or rest). 32. See Stidham v. Swenson, 506 F.2d 478, 481 (8th Cir. 1974) (holding a prisoner s confession to be coerced in part because the condition of his cell was subhuman ). 33. See Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963) (finding confession to be involuntary where police told defendant that state financial aid to her child would be cut off and her children taken from her if she failed to cooperate); United States v. Tingle, 658 F.2d 1332, (9th Cir. 1981) (holding that intentionally causing the suspect to fear that she would not see her children for a long time was patently coercive ). 34. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 2416, 57 L. Ed. 2d 290, 303 (1978) (noting that any use at trial of an involuntary statement violates the defendant s due process rights). 35. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966). The prosecution does not need to prove this beyond a reasonable doubt, however. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 485 (1986) ( [T]he State need prove waiver only by a preponderance of the evidence. ). See also, People v. Seymour, 14 A.D.3d 799, 801, 788 N.Y.S.2d 260, (3d Dept. 2005) (a valid waiver of Miranda rights is established if defendant understood the immediate meaning of the warnings). 36. Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 1627, 16 L. Ed. 2d 694, 723 (1966). Note that the police can continue to question you about unrelated crimes. See Michigan v. Mosley, 423 U.S. 96, , 96 S. Ct. 321, , 46 L. Ed. 2d 313, (1975) (holding that although the suspect invoked the right to remain silent on robbery charges, several hours later another police officer could permissibly question the suspect about an unrelated homicide upon providing the Miranda warnings and securing a waiver from the suspect). But see People v. Boyer, 48 Cal. 3d 247, 273, 768 P.2d 610, 623, 256 Cal. Rptr. 96, 109 (1989) (finding that under California state law, police can no longer attempt to question a suspect in custody once the suspect has invoked both a right to remain silent and to an attorney), overruled on other grounds by People v. Stansbury 889 P.2d 588 (Cal. 1995). 37. See United States v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (holding that a suspect can selectively assert his right to remain silent but simply failing to answer some questions does not constitute the invocation of the right to remain silent ).

7 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 935 must stop until you have had time to talk to a lawyer or until you reinitiate the interrogation. 38 However, you must be clear that you are asking for an attorney to represent you in this circumstance. 39 In addition, you are entitled to an attorney whenever the interrogation resumes. 40 B. Your Right to Counsel at Trial Your right to counsel is protected by the Fifth and Sixth Amendments of the U.S. Constitution. It is important to realize that these two amendments differ in the kind of protections that they provide you. This chapter is concerned with your right to the assistance of counsel under the Sixth Amendment. In short, you should know that statements made by you, outside the presence of your counsel and when you have not waived your right to counsel may not be used against you at your trial. It is important to realize, however, that the Sixth Amendment is offense specific. 41 Offense specific means that, while you are detained, the state may continue investigating you for other crimes with which you have not yet been charged and may use your statements against you to prove those crimes. 1. Overview of the Sixth Amendment The Sixth Amendment guarantees your right to the assistance of counsel, 42 among other things. 43 This right is different and independent from your Fifth Amendment right to counsel during custodial interrogations. 44 The Sixth Amendment right to counsel has special significance for you as a pretrial detainee because it begins the moment formal criminal proceedings are started against you 45 and continues through trial preparation, the trial itself, the sentencing phase, 46 and beyond. 47 If you cannot afford a lawyer, the government must provide one for you if: (1) you are being prosecuted in a federal court; or (2) you are charged with a felony in state court. 48 The state is not required to appoint a lawyer to represent you if 38. See Edwards v. Arizona, 451 U.S. 477, , 101 S. Ct. 1880, , 68 L. Ed. 2d 378, 386 (1981) (holding that once the suspect asks for an attorney, interrogation cannot resume until counsel has been made available, or the accused himself initiates further conversations with the police). But see Berkemer v. McCarty, 468 U.S. 420, 437, 104 S. Ct. 3138, , 82 L. Ed. 2d 317, 333 (1984) (holding that Miranda must be enforced strictly but only in those situations where the concerns that powered the decision are present ). This has been interpreted by lower courts as allowing police to ask clarifying questions to suspects who have volunteered information after asserting their rights to remain silent and to counsel. See e.g., United States v. Rommy, 506 F.3d 108, 133 (2nd Cir. 2007), cert, den d, 128 S. Ct. 1681, 170 L. Ed. 2d 358 (2008) (holding that simple clarifying questions do not necessarily constitute interrogation ). 39. See Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, , 129 L. Ed. 2d 362, 373 (1994) (holding that a suspect must be clear in his desire for counsel; it is not enough for the suspect to state, Maybe I should talk to a lawyer. ). 40. Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 723 (1966). 41. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207, 115 L. Ed. 2d 158, 166 (1991) ( The Sixth Amendment right is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced. ); Rothgery v. Gillespie County, 128 S. Ct. 2578, 2602, 171 L. Ed. 2d 366, 395 (2008) (stating that the 6th Amendment right to counsel attaches only to those offenses for which the defendant has been formally charged ). 42. U.S. Const. amend. VI ( In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense. ). Note that the 6th Amendment does not apply to civil proceedings. For example, if you were to bring a 42 U.S.C civil rights claim against the state, you would not have 6th Amendment protections during that case. 43. The 6th Amendment also guarantees your right to a speedy trial. See Part D(1) of this Chapter for more information. Other rights under the 6th Amendment not covered in this Chapter include trial by jury and the right to cross-examine witnesses against you. 44. For information concerning your 5th Amendment right to counsel, see Part A(1) of this Chapter. 45. See Fellers v. United States, 540 U.S. 519, 523, 124 S. Ct. 1019, 1022, 157 L. Ed. 2d 1016, 1022 (2004) (holding that the right to counsel under the 6th Amendment is triggered at or after the time that judicial proceedings have been initiated... whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (quoting Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977))). 46. Mempa v. Rhay, 389 U.S. 128, 137, 88 S. Ct. 254, 258, 19 L. Ed. 2d 336, 342 (1967) (holding that the right to counsel extends to every stage of criminal proceedings where the substantive rights of the accused might be affected, including post-conviction sentencing and revocation of probation). 47. See JLM, Chapter 9 for information on the appeals process. 48. See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (holding that the 6th Amendment should be interpreted to mean that defendants must be provided with counsel in federal courts, unless the right is waived, and that this right is extended to state court matters through the 14th Amendment).

8 936 A JAILHOUSE LAWYER S MANUAL Ch. 34 you are facing a misdemeanor or less (even if imprisonment is a possible sentence upon conviction). 49 However, if the state does not appoint a lawyer, and you are convicted, you may not be imprisoned. 50 Unlike your Fifth Amendment right to counsel, under the Sixth Amendment your right to counsel does not depend upon your request for a lawyer. 51 The state, including police investigators and prosecutors, has a duty to protect and to respect this right. 52 Officials may not deliberately elicit incriminating statements from you to use against you at your trial while you are unrepresented. 53 As explained in the next section, the Sixth Amendment has become especially important in cases where the police (or police informants) have interrogated or questioned defendants prior to trial. This Sixth Amendment right applies in both federal and state court trials. 54 If you are facing state proceedings, that state may also have a similar provision in its state constitution, which may provide you with additional protection. The state (which is defined to include the Department of Corrections and your prison) has an affirmative obligation to respect your right to counsel. 55 Some courts have held that this means the state may not take certain actions such as transferring you to a distant prison, or curtailing your telephone access which might make it significantly more difficult for you to consult with your attorney. 56 Your right to counsel, however, as with all constitutional rights, will be balanced against the state s legitimate interests, such as security or order. 57 See Part E(4) of this Chapter for more information on pretrial detainees right of access to counsel. 2. The Deliberately Elicited Test Under the Sixth Amendment, at trial, the state may not use incriminating remarks which were deliberately elicited from you after you were charged with a crime if: (1) the statements are about the crime 49. Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S. Ct. 2006, 2014, 32 L. Ed. 2d 530, 540 (1972) (stating that imprisonment cannot be imposed without representation by counsel, even if the charge is a misdemeanor which results in a conviction). See also Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002) (holding that defendant may not receive a suspended prison sentence which could be triggered by a subsequent violation of probation unless counsel is provided). 50. Scott v. Illinois, 440 U.S. 367, 374, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383, 389 (1979) (holding that a defendant can be sentenced to imprisonment, but that he cannot actually be imprisoned unless he was represented by counsel). 51. See Carnley v. Cochran, 369 U.S. 506, 513, 82 S. Ct. 884, 889, 8 L. Ed. 2d 70, 76 (1962) (holding that it is settled that where the assistance of counsel is a constitutional requisite, the right to be [appointed] counsel does not depend on a request. ). 52. See Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481, 492 (1985) ( The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. ). 53. See Fellers v. United States, 540 U.S. 519, 524, 124 S. Ct. 1019, 1023, 157 L. Ed. 2d 1016, 1023 (2004) (holding that evidence derived from a discussion that took place after the defendant s indictment was inadmissible because it was obtained outside the presence of counsel, and in the absence of any waiver of petitioner's Sixth Amendment rights ); Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246, 250 (1964) (holding that petitioner s 6th Amendment protections had been violated where evidence of his own incriminating words were used against him at his trial and agents had intentionally elicited those words after he had been indicted without his counsel present). 54. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (holding that the right to a counsel applies in state proceedings). 55. See Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481, 492 (1985) ( The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. ). 56. See, e.g., Covino v. Vermont Dept. of Corr., 933 F.2d 128, 130 (2d Cir. 1991) (noting that a prison transfer making it difficult for the detainee to talk to his lawyer due to the distance the lawyer would have to travel might violate right to counsel); Tucker v. Randall, 948 F.2d 388, 390 (7th Cir. 1991) (noting that denying a pretrial detainee telephone access for four days, if no other contact with the attorney was allowed, would possibly violate the 6th Amendment); Cobb v. Aytch, 643 F.2d 946, 951, 957 (3d Cir. 1981) (finding that transferring detainees from Philadelphia jails to Pennsylvania facilities hundreds of miles away, when most detainees were represented by city public defenders, violated the detainees right to counsel). See also Benjamin v. Fraser, 264 F.3d 175, 184 (2d Cir. 2001) (noting that courts, when determining whether a burden on the prisoners' right of access to the courts is unjustifiable, will weigh[ ] the financial and time costs imposed on attorneys by travel to remote prisons ) 57. See, e.g., Feeley v. Sampson, 570 F.2d 364, (1st Cir. 1978) (finding that jail officials should be given discretion to balance detainee s legitimate need to communicate with attorneys against security concerns of unlimited phone calls, subject to judicial review to prevent unreasonable restrictions).

9 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 937 you are charged with; 58 and (2) you have not waived your right to counsel. 59 Exactly when the state has deliberately elicited incriminating statements can be confusing. The Sixth Amendment is not violated just because the state receives incriminating statements by luck or happenstance. 60 Instead, the government has deliberately elicited statements whenever it intentionally creates a situation where it is likely that the defendant will make incriminating statements without the assistance of counsel. 61 In addition, the government is also considered to have violated the test when it knowingly takes advantage of a situation to interrogate the accused without counsel present. 62 Proof that the state must have known its agent was likely to receive incriminating statements is enough to find a Sixth Amendment violation. 63 You may be able to better understand the deliberately elicited test by familiarizing yourself with two of the Supreme Court s Sixth Amendment cases. In Massiah v. United States, 64 the defendant (Massiah) and his co-defendant (Colson) were charged with drug crimes and then released on bail. Without Massiah s knowledge, Colson agreed to cooperate with the police. Colson allowed the police to put a radio transmitter under the front seat of his car so the police could listen to conversations taking place there. Colson then had a conversation in his car with Massiah while the police listened. During this conversation, Massiah made incriminating statements, which were used in his trial and led to his conviction. The Supreme Court reversed Massiah s conviction, finding that federal agents had deliberately elicited these incriminating statements from Massiah after his Sixth Amendment right to counsel had attached. Even though the interrogation was not conducted in police custody, and despite the fact that Massiah was not aware he was being interrogated, the Supreme Court held the Sixth Amendment protection still applied. For the Sixth Amendment to have any force, the Supreme Court said, it must apply to indirect and surreptitious [undercover] interrogations as well as those conducted in the jailhouse. 65 United States v. Henry, 66 another Sixth Amendment case, shows how the state s use of paid informants to elicit incriminating statements can sometimes make those statements inadmissible. In Henry, the defendant was charged with armed robbery and placed in jail to await trial. An FBI agent contacted a paid informant, who was in the same cell block as Henry. The FBI agent told the informant to listen to what Henry said and report back any incriminating statements Henry made. By telling the informant not to question Henry, the FBI agent was trying to comply with the Sixth Amendment restrictions on eliciting incriminating statements. The paid informant talked to Henry in prison about the charged crimes. The Supreme Court found that this arrangement violated the Sixth Amendment by interfering with Henry s right to counsel. The Court cited three reasons for its decision. First, the paid informant got his orders from the FBI, and he was paid only if he produced useful information. Thus, despite the agent s instruction not to question Henry, the agent must have known that the arrangement would likely lead to the 58. See Part B(3) of this Chapter for more information on this limitation. 59. See Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246, 250 (1964) (finding that the 6th Amendment was violated when prosecutors relied on defendant s words that were deliberately elicited from him after he had been indicted and in the absence of his counsel); see also Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481, 492 (1985) ( The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek the assistance of counsel); Brewer v. Williams, 430 U.S. 387, 415, 97 S. Ct. 1232, 1248, 51 L. Ed. 2d 424, 447 (1977) ( [T]he lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the [suspect]. If we are seriously concerned about the individual's effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer. ) (Stevens, J., concurring). 60. Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 487, 88 L. Ed. 2d 481, 496 (1985) (holding that defendant's right to counsel was violated when co-defendant, in cooperation with police, recorded incriminating statements made to him by defendant after indictment). 61. See United States v. Henry, 447 U.S. 264, 274, 100 S. Ct. 2183, 2189, 65 L. Ed. 2d 115, 125 (1980). 62. See Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 487, 88 L. Ed. 2d 481, 496 (1985) (stating that at the very least, the prosecutor and the police have a duty not to act in a manner aimed at getting around the protection created by the right to counsel). 63. See Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 487, 88 L. Ed. 2d 481, 496 (1985) (finding a 6th Amendment violation when police knew that defendant would make statements to their agent that he had a constitutional right not to make before consulting counsel, even though police had told their informant not to interrogate the defendant). 64. Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). 65. Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246, 250 (1964) (quoting United States v. Massiah, 307 F.2d 62, (2d Cir. 1962) (Hays, J., dissenting)). 66. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).

10 938 A JAILHOUSE LAWYER S MANUAL Ch. 34 informant trying to secure incriminating statements from Henry without counsel present. 67 Second, the informant pretended to be nothing more than a fellow inmate. Conversation in such a situation may elicit information which would not be revealed to known government agents. Henry could not have knowingly and voluntarily waived his Sixth Amendment rights, since he did not know the paid informant actually worked for the police. 68 Finally, the fact that Henry was in prison was important to the Court s decision. Even if your confession is normally inadmissible under the Sixth Amendment because it was deliberately elicited, the state can admit that confession to impeach your testimony. In other words, if you give testimony at trial that differs from the informant s account of your conversations, the informant can testify afterwards that your testimony is unreliable Offense Specific Limitation The Sixth Amendment is offense specific. 70 Offense specific means that the state may continue investigating you for other crimes with which you have not been charged and may use your statements against you. For example, imagine you are in jail waiting to be tried for a drug crime and the police suspect you of robbery (but you have not been charged with the robbery). The police could use any of the Massiah or Henry techniques to get information about the robbery, but not about the drug crime. Although the Sixth Amendment is offense specific, in some instances your Fifth Amendment Miranda rights could be implicated, 71 which is important to keep in mind when appealing your conviction. 4. Waiver of Your Right to Counsel As with your Fifth Amendment right to counsel, your Sixth Amendment right to counsel can be waived. You must have waived your Sixth Amendment right knowingly and voluntarily. 72 The burden is on the prosecution to show that your waiver meets those conditions. 73 Importantly, if police initiate interrogation after a defendant s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant s right to counsel for that police-initiated interrogation is invalid United States v. Henry, 447 U.S. 264, , 100 S. Ct. 2183, , 65 L. Ed. 2d 115, 122 (1980). 68. United States v. Henry, 447 U.S. 264, 273, 100 S. Ct. 2183, 2188, 65 L. Ed. 2d 115, 124 (1980). For more information on waiver, see Section 4 of this Part. 69. Kansas v. Ventris, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009). 70. See Texas v. Cobb, 532 U.S. 162, 174, 121 S. Ct. 1335, 1344, 149 L. Ed. 2d 321, 332 (2001) (holding that where a pretrial detainee had been indicted for one crime but had not yet been charged with a closely related crime, his Sixth Amendment right to counsel did not bar police from interrogating him regarding the related crime); McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207, 115 L. Ed. 2d 158, 166 (1991) ( The Sixth Amendment right is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced ); Rothgery v. Gillespie County, 128 S. Ct. 2578, L. Ed. 2d 366, 395 (2008) (stating that the 6th Amendment right to counsel attaches only to those offenses for which the defendant has been formally charged ). Some states treat the question of crime relatedness slightly differently and depending on where you have been charged this may be to your advantage. See, e.g., People v. Bing, 76 N.Y.2d 331, , 558 N.E.2d 1011, 1022, 559 N.Y.S.2d 474, 485 (1990) ( [P]ermitting questioning on unrelated crimes violates neither the State Constitution nor our prior right to counsel cases. ). 71. Compare Illinois v. Perkins, 496 U.S. 292, , 110 S. Ct. 2394, , 110 L. Ed. 2d 243, (1990) (holding that an undercover agent, while in jail posing as a fellow prisoner, may question a prisoner about a crime without giving a Miranda warning if the prisoner has not yet been charged with that crime), with Mathis v. United States, 391 U.S. 1, 4 5, 88 S. Ct. 1503, 1505, 20 L. Ed. 2d 381, 385 (1968) (holding that questioning of a prisoner by a person known to be an Internal Revenue Service official about tax violations, without the giving of a Miranda warning, violated the prisoner s 5th Amendment rights, when the prisoner was in prison for an entirely different offense). See Part A of this Chapter for more information on your 5th Amendment rights. 72. Faretta v. California, 422 U.S. 806, , 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, (1974) (holding that waiver of the right to counsel must be made knowingly, voluntarily, and intelligently). Note that while the waiver must also be made competently and intelligently, those criteria are generally satisfied if you are competent to stand trial. Compare Godinez v. Moran, 509 U.S. 389, , 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321, (1993) (holding that if a person is competent to stand trial, he is also competent to waive the right to counsel or to plead guilty), with Indiana v. Edwards, 128 S. Ct. 2379, , 171 L. Ed. 2d 345, 357 (2008) (holding that the Constitution permits States to insist upon representation by counsel for defendants who are competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves ). 73. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424, 439 (1977) (noting that it [is] incumbent upon the State to prove the validity of a waiver). 74. Montejo v. Louisiana, 129 S. Ct. 2079, 2091, 173 L. Ed. 2d 955 (2009) ( What matters in [Sixth Amendment cases] is what happens when the defendant is approached for interrogation, and (if he consents) what happens during

11 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 939 C. Bail Bail is the release from custody of a charged suspect who must appear before the court at later date. The suspect may be required to pay money or post bond in an amount set by the judge in order to make sure he appears in the future. 75 The judge is allowed to decide whether you will be released or held for trial; there is no constitutional right to bail. The only constitutional rights you have regarding bail are: (1) the court s discretion cannot be exercised arbitrarily (randomly) in making the determination whether to release you on bail or to detain you; and (2) excessive bail cannot be imposed because that is expressly prohibited by the Eighth Amendment. 76 However, despite the weak constitutional standards regarding bail, the federal government and many states have passed legislation protecting the rights of pretrial detainees to bail. 1. The Federal Bail Reform Act The Federal Bail Reform Act describes the federal government s authority to detain or release prisoners before trial, appeals of a release or detention order, penalties for failure to appear and for offenses committed while on release, and pretrial services for detainees. 77 In United States v. Salerno, the Supreme Court considered a constitutional challenge to the Federal Bail Reform Act by a pretrial detainee. 78 The defendants in Salerno argued that the Fifth Amendment of the U.S. Constitution prohibited the detention of arrestees without bail; however, the Court held that the Act s authorization of pretrial detention on the basis of future danger did not violate due process and was not impermissible punishment before trial. 79 The Court found that as long as the provisions of the Act were not intended to punish dangerous individuals, preventing danger to the community was an adequate reason to justify detention before trial. 80 The rest of this Part deals with your rights under the Bail Reform Act. (a) Timing of Bail Hearing If you are a federal pretrial detainee, you are entitled to a detention hearing at your first appearance before a judge to determine whether you are entitled to receive bail. In setting your bail, the judge focuses on whether: (1) there is enough assurance that you will appear for trial; and (2) you will pose a significant threat to the safety of the community. 81 The default rule is that you will be released either on your own recognizance 82 or upon your payment of an amount of bail set by the judge. 83 If the judge does not believe that releasing you on those terms will satisfy the two factors, she may impose a number of conditions on your release. 84 If the judge finds that no condition or combination of conditions will satisfy the two factors, the judge must order detention before trial. 85 It is important to note that the detention hearing can be postponed for five weekdays at your request, or for three days at the request of the government. 86 At this hearing, you have a right to be represented by counsel or to have counsel appointed if you cannot afford to pay for counsel. You have the right to testify, to the interrogation not what happened at any preliminary hearing. ). 75. Black s Law Dictionary 150 (8th ed. 2004). 76. Excessive bail shall not be required... U.S. Const. amend. VIII. 77. Bail Reform Act, 18 U.S.C (2006). 78. United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). 79. United States v. Salerno, 481 U.S. 739, , 107 S. Ct. 2095, , 95 L. Ed. 2d 697, (1987). 80. United States v. Salerno, 481 U.S. 739, , 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, (1987) U.S.C. 3142(f) (2006). 82. A defendant is released on his personal recognizance when he is released after promising to appear for trial at a later date without being required to pay bail. Black s Law Dictionary 1299 (8th ed. 2004) U.S.C. 3142(b) (2006) U.S.C. 3142(c)(1) (2006). Some examples of conditions of release that a court may impose include: where you may live or travel; with whom you may associate; that you comply with a specified curfew; that you return to custody for specified hours following release for limited purposes such as employment or schooling; that you remain in the custody of a designated person who agrees to assume your supervision; that you maintain employment, or if unemployed, seek employment; that you maintain or start an educational program; that you avoid the alleged victim or any potential witnesses; that you regularly report to a designated law enforcement agency or other agency; that you not possess a firearm or other dangerous weapon; that you refrain from excessive use of alcohol or use of any nonprescription drug; that you undergo medical, psychological, or psychiatric treatment (including drug and alcohol treatment); or any other condition necessary to assure your appearance and the safety of any other person or the community. 18 U.S.C. 3142(c)(1)(B) (2006) U.S.C. 3142(e) (2006) U.S.C. 3142(f)(2)(B) (2006).

12 940 A JAILHOUSE LAWYER S MANUAL Ch. 34 present witnesses, and to cross-examine witnesses that appear at the hearing. 87 Any ruling by the court that you are not entitled to be released prior to trial must be supported by clear and convincing evidence that no combination of conditions on your release will reasonably assure the safety of others and your appearance at trial. A delay in the hearing will not defeat the government s power to seek your detention. The Supreme Court held that the government s failure to comply with the prompt hearing provision of the Act did not require the release of a person otherwise considered likely to flee or cause danger to others. 88 So, improper timing or delay of your detention hearing will not by itself require your release under the statute if you are considered a flight risk or a danger to other persons in the community. (b) Denial of Bail The text of Section 3142(f) indicates that, if you are a flight risk or threaten the safety of the community, you must be detained before trial. Most courts of appeal hold that only one of the two conditions needs to be satisfied in order to justify detainment before trial. 89 However, some circuits have held that a showing of dangerousness to the community, without more, is not enough for a judge to order pretrial detention. 90 Regardless of the circuit, if the court finds a risk of flight and wants to keep you detained, it must also find that there are no conditions that could reasonably assure your presence at trial. 91 The court, in making this determination, must look to the nature and circumstances of the offense charged, the weight of evidence against the defendant, the history and characteristics of the defendant, and the danger posed to the community by the defendant s release. 92 If you are denied bail, the hearing may be reopened at any time before the trial if the judge finds there is information that was unknown at the time of the hearing and which is relevant to whether the two factors above (appearance at trial and safety of the community) can be met. 93 If a judge grants you bail and you cannot afford to pay it, you will be held in a detention facility until your trial date arrives. If you are found guilty, any time that you have already served will be deducted from your sentence. The judge is prohibited from imposing a bail so high that you are unable to pay and are ultimately detained prior to trial. 94 However, this provision does not automatically require the release of a person who is unable to meet the bail requirement. If you move to reduce the amount of the initial bail, the judge will hold a detention hearing. However, the judge may still determine that without bail there are no conditions that will reasonably assure your presence for trial. In such a situation, the court may decide that the initial amount was necessary and reasonable. (c) Review and Appeal of Bail Decision Importantly, you can ask for a review of the hearing officer s decision regarding bail and you can also appeal the decision. If the original decision on bail was made by somebody other than the judge who has jurisdiction over the criminal case (such as a magistrate judge), you or the government may appeal the officer s decision to the judge who has jurisdiction over the case. 95 For example, if you are granted release U.S.C. 3142(f)(2)(B) (2006). 88. United States v. Montalvo-Murillo, 495 U.S. 711, 717, 110 S. Ct. 2072, 2077, 109 L. Ed. 2d 720, (1990). 89. See United States v. King, 849 F.2d 485, 488 (11th Cir. 1988) (finding pretrial detention appropriate if defendant is a flight risk or a danger to the community); United States v. Ramirez, 843 F.2d 256, 257 (7th Cir. 1988) (per curiam) (same); United States v. Sazenski, 806 F.2d 846, 848 (8th Cir. 1986) (per curiam) (same); United States v. Coleman, 777 F.2d 888 (3d Cir. 1985) (holding that danger to the community is sufficient under the statute to justify detention). 90. United States v. Ploof, 851 F.2d 7, (1st Cir. 1988) (holding that detention based on dangerousness is only proper if the case involves one of the circumstances in 18 U.S.C. 3142(f)(1)); United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (same). See also United States v. Sabhnani, 493 F.3d 63, 76 (2d Cir. 2007) (holding that factors which make the defendant more likely to flee such as relative ease and family living in other countries may, combined with dangerousness, support preventative detention). 91. See United States v. Berrios-Berrios, 791 F.2d 246, (2d Cir. 1986) U.S.C. 3142(g) (2006); see United States v. Jackson, 823 F.2d 4, 6 7 (2d Cir. 1987) (affirming the pretrial detention of a defendant who faced the possibility of a severe sentence, where the crime charged involved narcotic drugs, and where the government had shown extensive criminal history, general lack of ties to the community, hidden assets, and use of false names) U.S.C. 3142(f) (2006) U.S.C. 3142(c)(2) (2006)(2)(B) U.S.C. 3145(a) (2006) (providing for review of a release order); 18 U.S.C. 3145(b) (2006) (providing for review of a detention order).

13 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 941 but you think the court imposed too many conditions on your release, you could ask for the judge to amend the conditions imposed by the judicial officer. After the order has been reviewed, both you and the government have the right to appeal the decision to a circuit court. 96 If you do appeal, the appellate circuit court will review both the lower court s finding of facts and its resulting decision to grant or deny bail under the clearly erroneous rule, 97 which means that the appellate court must have a definite and firm conviction that the lower court made a mistake. 98 This standard of review means that most bail decisions are not overturned on appeal, however it is an option you should consider if you feel that bail was unfairly denied and believe that you can show that you are not a danger to the community nor a flight risk. 2. New York s Bail Statute In New York, the issue of whether you are eligible to be released on your own recognizance or on bail is governed by Articles 510 and 530 of the New York Criminal Procedure Law. If you were charged in a state other than New York, you should check the relevant state statutes, some of which have been provided as an appendix to this Chapter. Under Section , at your initial appearance the court is required to issue a securing order that either releases you on your own recognizance, fixes bail, or commits you to the custody of the sheriff. 99 Section provides you with the right to make an application for bail or recognizance, as opposed to commitment to the custody of the sheriff, and to present arguments and evidence in support of your application in court. According to the language of the statute, the application can be made at the time of the original securing order or any time afterward, 100 however, in practice, bail applications are confined to the post arrest arraignment or the arraignment on your indictment unless there is a subsequent change in the circumstances of your detention. The decision on your application is not left entirely up to the discretion of the judge. If you were charged with an offense less than a felony, the court must order recognizance or bail. 101 If you are charged with a felony, the court may, in its discretion, order recognizance or bail (subject to some restrictions discussed below) or commit you to the custody of the sheriff. 102 Certain local criminal courts (city courts, town courts, and village courts) lack the authority to release you on recognizance or bail if you are charged with certain types of felonies (class A felonies) or if you have been convicted of two prior felonies. 103 No local criminal court may order recognizance or bail if you are charged with a felony until it has received a fingerprint report concerning your prior criminal record, and the district attorney has had an opportunity to be heard on the matter. 104 If a report on your past criminal behavior is unavailable, the district attorney may consent to recognizance or bail without it. 105 Section provides you with an opportunity to apply to a superior court to grant recognizance or bail in felony cases where certain local criminal courts have no authority to do so. 106 This section also provides an opportunity for the review of securing orders fixed by criminal courts if you contest that the U.S.C. 3145(c) (2006). 97. See United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986) ( In reviewing a district court's order granting or denying bail, we apply the clearly erroneous rule to the court's predicate factual findings. (citing United States v. Matir, 782 F.2d 1141 (2d Cir. 1986))). 98. United States v. Berrios-Berrios, 791 F.2d 246, (2d Cir. 1986) (explaining that in order to reverse a lower court s ruling when applying the clearly erroneous standard, the reviewing court must hold a "definite and firm conviction that a mistake had been committed" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948))). 99. N.Y. Crim. Proc. Law (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (McKinney 1995 & Supp. 2008); See, e.g., People ex rel. Rosenthal (Kolman) v. Wolfson, 48 N.Y.2d 230, 233, 397 N.E.2d 745, 746, 422 N.Y.S.2d 55, 56 (1979) (holding that when pertinent new evidence becomes available the trial court should reconsider their initial decision to grant or withhold bail) N.Y. Crim. Proc. Law (1) (McKinney 1995 & Supp. 2008). See also N.Y. Crim. Proc. Law (3) (McKinney 1995 & Supp. 2008) ( If the bail fixed is not posted, or is not approved after being posted, the court must order that the principal be committed to the custody of the sheriff. ) N.Y. Crim. Proc. Law (2) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2)(a) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2)(b)(i) (ii) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2)(b)(ii) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (1)(a) (McKinney 1995 & Supp. 2008).

14 942 A JAILHOUSE LAWYER S MANUAL Ch. 34 terms were unlawful or excessively severe. 107 Unlawful or severe, in this context, means that your application for recognizance or bail was denied by the local criminal court or that the court fixed an excessive amount of bail. 108 If you have been charged with a felony, the district attorney must have the opportunity to be heard and the superior court judge must be provided with a copy of your criminal record. 109 Note that under New York s Bail statute, you may appeal your bail to the superior court only once. 110 If the denial of bail is not required by law, Section provides the criteria to be considered by the court when determining the amount of bail to be imposed. Your application for recognizance or bail will be determined after the court has taken into account the following information: (1) Your character, reputation, habits, and mental condition; (2) Your employment and financial resources; (3) Your family ties and length of residency in the community; (4) Your criminal record; (5) Your juvenile record; (6) Your previous record with respect to court appearances and flight to avoid criminal prosecution; (7) The weight of evidence against you in the pending criminal action; and (8) The sentence that may be imposed upon conviction. 111 You should note that under New York s statute, the courts are not allowed to consider your potential threat to the community based on future criminal conduct when considering your application for recognizance or bail. The only matter that the court may consider is whether any bail, or the amount fixed as bail, is necessary to ensure your future court appearance. 112 However, some case law suggests that the goal of assuring the safety of the community can indirectly be taken into consideration. 113 Moreover, as a practical matter, the above factors provide enough room for courts to detain defendants whom they find to be potentially dangerous. 114 Also, because there is no statutory requirement for the court to take the defendant s financial resources into account, a small amount of bail can sometimes be enough to ensure that you are detained until trial. D. Your Right to a Speedy Trial 1. The Sixth Amendment: Constitutional Right to a Speedy Trial Your right to a speedy trial is guaranteed by the Sixth Amendment of the U.S. Constitution and applies to trials in both federal and state courts. 115 You have a right to a speedy trial even if you are released on bail 107. N.Y. Crim. Proc. Law (1) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (1)(b) (c) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (3) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2)(a) (McKinney 1995 & Supp. 2008) N.Y. Crim. Proc. Law (2)(a) (McKinney 1995 & Supp. 2008); see Sardino v. State Comm n on Judicial Conduct, 58 N.Y.2d 286, , 448 N.E.2d 83, 84, 461 N.Y.S.2d 229, 230 (1983) (finding disregard of due process when judge arbitrarily set bail without any regard to the statutory factors); People ex rel. Schweizer v. Welch, 40 A.D.2d 621, 622, 336 N.Y.S.2d 556, (4th Dept. 1972) (noting that, when the setting of bail is discretionary, the safety of the community may not be properly considered as it is not one of the listed criteria ); People ex rel. Bauer v. McGreevy, 555 N.Y.S.2d 581, 583, 147 Misc. 2d 213, (Sup. Ct. Rensselaer County 1990) (holding that county court cannot deny bail application solely to protect the community; ensuring defendant s appearance in court is the only matter of legitimate concern) See People v. Torres, 446 N.Y.S.2d 969, 972, 112 Misc. 2d 145, 149 (Sup. Ct. N.Y. County 1981) (holding that the defendant s potential danger to the community cannot be considered in fixing the amount of bail, but may be relevant in court s threshold determination as to whether bail should or should not be set at all); People v. Mohammed, 171 Misc. 2d 130, 136, 653 N.Y.S.2d 492, (Sup. Ct. Kings County 1996) (noting that there are several statutes aimed at remedying the abuse caused by the idea that the only reason for bail is to ensure the defendant's return to court ); People v. Melville, 62 Misc. 2d 366, 373, 308 N.Y.S.2d 671, 677 (N.Y. Crim. Ct. N.Y. County 1970) (stating that bail may be denied because, among other things, he poses a threat to the community if released on bail) See, e.g., People ex rel. Hunt v. Warden, Riker s Island Corr. Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, 743 (1st Dept. 1990) (finding that nature and extent of more than 100 counts of sexual abuse and exploitation of young children, taken together with the criteria spelled out in the statue and the defendant s general reputation and character supported denial of bail) U.S. Const. amend. VI; U.S. Const. amend. XIV, 1; see Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 8 (1967) (holding that the 6th Amendment is enforceable in state as well as federal actions).

15 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 943 before trial. 116 Note, however, that this right does not apply until you have been formally charged or are arrested. 117 The remedy for the violation of the right to a speedy trial is the dismissal of the indictment. 118 The courts have not defined a specific number of days after which your federal constitutional right to a speedy trial has been violated. Instead, the Supreme Court has created a balancing test for courts to use in speedy trial cases. The four factors to be considered in determining whether there has been a violation of the detainee s constitutional rights are: [l]ength of delay, the reason for the delay, the defendant s assertion of his right, and prejudice to the defendant. 119 The Supreme Court held that unless there is some delay that is presumptively prejudicial that is, a delay that appears to have damaged the defendant s case the other three factors do not need to be considered. 120 Furthermore, the length of delay that will trigger an application of all four factors will depend on the particular circumstances of the case. 121 As a general guideline, note that the Supreme Court observed that delays approaching or exceeding one year usually trigger a full, four-part analysis. 122 While the Supreme Court has ruled that [a] showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause, 123 the government s justification for the delay is also important. A deliberate attempt by the government to delay your trial may help establish your claim to a constitutional violation, but negligence or overcrowded courts will be weighed less heavily against the government. 124 In addition, failing to file a complaint to assert your right will make it difficult to prove that you were denied your constitutional right to a speedy trial. 125 The federal government 126 and most state governments have enacted speedy trial statutes to guarantee this right. We discuss the federal and New York statutes below. While most speedy trial statutes are similar, if you are accused of a state crime outside of New York, you should locate and read the speedy trial statute of your particular state. See Appendix A of this Chapter for a listing of state speedy trial statutes and for an introduction to legal research, see Chapter 2 of the JLM. 2. The Federal Speedy Trial Act 127 Hoping to implement a quicker procedure for trying cases in the federal courts and ensure that the right to a speedy trial would be respected, Congress passed the Speedy Trial Act. If you are charged with a federal crime, you have a statutory right to have your case tried within the time limits specified in the Act. The Act provides (1) that the indictment charging you with an offense must be filed within thirty days from the date on which you were arrested or served with a summons for the charges; 128 (2) that your trial must start 116. United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502, 71 L. Ed. 2d 696, 704 (1982) (stating that the speedy trial guarantee is designed in part to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail ) See United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 463, 30 L. Ed. 2d 468, 479 (1971) ( [I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision ) See Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2264, 37 L. Ed. 2d 56, 62 (1973) (holding that the only remedy available for such violations is reversing the convicting, vacating the sentence and dismissing the indictment) Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, (1972) (holding that courts must conduct a balancing test when considering speedy trial cases and listing some of the factors that courts should weigh) Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, (1972) ( Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. ) See Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972) ( To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. ) Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 2691, 120 L. Ed. 2d 520, 528 n.1 (1992) Reed v. Farley, 512 U.S. 339, 353, 114 S. Ct. 2291, 2299, 129 L. Ed. 2d 277, 290 (1994) See Barker v. Wingo, 407 U.S. 514, 531, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972) See Barker v. Wingo, 407 U.S. 514, , 92 S. Ct. 2182, , 33 L. Ed. 2d 101, (1972) Speedy Trial Act of 1974, 18 U.S.C (2008) Speedy Trial Act of 1974, 18 U.S.C (2008). The most important sections are 3161 which deals with time limits, and 3162 which specifies the sanctions imposed when the time limits are violated U.S.C. 3161(b) (2008). However, the section also provides that if you are charged with a felony in a district in which no grand jury has been in session during this thirty-day period, the period of time for filing of the indictment will be extended for an additional thirty days.

16 944 A JAILHOUSE LAWYER S MANUAL Ch. 34 within seventy days of the filing of the indictment or from the date you first appeared in court, whichever date is later; 129 and (3) that your trial must not begin less than thirty days from when you first appear in court through counsel or expressly waive the right to have counsel. 130 In case the government fails to indict you within the thirty-day time limit explained above, the charges against you that are contained in the complaint will be dismissed. 131 In case the prosecution fails to bring your case to trial within seventy days of filing an indictment, 132 the indictment will be dismissed on your motion. 133 If you fail to move for dismissal prior to trial or if you enter a plea of guilty or nolo contendere (no contest), 134 your right to have the charges dismissed under the statute will be waived. 135 (a) Dismissal With or Without Prejudice If there is a violation of the time limits set by the Speedy Trial Act, the Court will dismiss the charges either with or without prejudice. If the dismissal is with prejudice, the government cannot reinstate the case. If the dismissal is without prejudice, the government can file the same charges again. In determining whether to dismiss with or without prejudice, the court will consider: (1) the seriousness of the offense; (2) the facts and circumstances that led to its dismissal; and (3) the effect of re-prosecution on the administration of the Speedy Trial Act and the administration of justice. 136 In balancing the considerations listed above, the court will often favor dismissal without prejudice. The Supreme Court has reversed the dismissal of a criminal prosecution with prejudice for violation of the Speedy Trial Act, as an abuse of discretion because the lower court failed to state the reasons for its conclusion that the government s conduct was careless. 137 The Court also stated that the lower court erred in not considering the lack of prejudice to the defendant from the brief delay and the fact that defendant s behavior in failing to appear for trial contributed to the delay. The Supreme Court held that the lower court s desire to send a message to the government that unexcused delays will not be tolerated is not enough to bar the reprosecution of the defendant by dismissing with prejudice. 138 Courts also tend to rule for dismissal without prejudice in cases where the offense charged is serious U.S.C. 3161(c)(1) (2008) U.S.C. 3161(c)(2) (2008) U.S.C. 3162(a)(1) (2008). See United States v. Cortinas, 785 F. Supp 357, (E.D.N.Y. 1992), aff d mem., 999 F.2d 537 (2d Cir. 1993) (holding that a violation of the Speedy Trial Act requires dismissal only of charges alleged in the complaint; prosecution for other conduct arising out of the same criminal incident, even though it was known or reasonably should have been known at the time of the complaint, is not barred) U.S.C. 3161(c)(1) (2008) U.S.C. 3162(a)(2) (2008) A plea of no contest means that the defendant, while not admitting guilt will not dispute the charge. This plea is often preferable to a guilty plea, which can be used against the defendant in a later lawsuit. Black s Law Dictionary 1074 (8th ed. 2004) U.S.C. 3162(a)(2) (2008). See also United States v. Brown, 498 F.3d 523, 532 (6th Cir. 2007) (observing that the defendant hadn t asserted his right to a speedy trial before this appeal and stating that that fact weighs heavily toward a conclusion that no Sixth Amendment violation occurred. ), cert. denied, 128 S. Ct. 674, 169 L. Ed. 2d 528 (2007); United States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004) (dismissing defendant s appeal based on speedy trial grounds as he did not file a pretrial motion on the issue); United States v. Jackson, 30 F.3d 572, 575 (5th Cir. 1994) (holding that defendant waived right to dismissal by conditionally pleading guilty to one count before moving for dismissal) U.S.C. 3162(a)(1) (2008). See United States v. Taylor, 487 U.S. 326, 336, 108 S. Ct. 2413, 2419, 101 L. Ed. 2d 297, 310 (1988) (holding that district courts must carefully consider the specified statutory factors as applied to the particular case and articulate clearly their effect in rendering its decision) United States v. Taylor, 487 U.S. 326, 343, 108 S. Ct. 2413, 2423, 101 L. Ed. 2d 297, 314 (1988) (holding that the district court abused its discretion because it failed to factor in the seriousness of the crime charged and relied heavily on an unexplained characterization of the government s actions as lackadaisical ) United States v. Taylor, 487 U.S. 326, , 108 S. Ct. 2413, , 101 L. Ed. 2d 297, (1988). See also New York v. Hill, 528 U.S. 110, 118, 120 S. Ct. 659, 666, 145 L. Ed. 2d 560, 569 (2000) (declining to affirm dismissal with prejudice and holding objection to a specified delay may be waived if not raised at trial) See United States v. Abdush-Shakur, 465 F.3d 458, 464 (10th Cir. 2006) (holding that dismissal with prejudice is not called for when the delay caused by the government is unintentional and the district court share[s] in the blame for the delay ), cert. denied, 127 S. Ct. 1321, 167 L. Ed. 2d 130 (2007). The 8th Circuit has one of the most defendant friendly precedents on this topic. See, e.g., United States v. Duranseau, 26 F.3d 804, 809 (8th Cir. 1994) (dismissing of indictment without prejudice is not an abuse of discretion where delay resulted from inadvertent noncompliance with Act and not from desire to gain tactical advantage against defendant, and reprosecution would not prejudice defendant despite his claim that alibi witness had died). Compare United States v. Wilson, 11 F.3d 346, 353

17 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 945 (b) Stop the Clock Provisions Upon a motion to dismiss the case, the defendant must prove that the indictment or trial was delayed beyond the time period allowed under the statute. 140 Once the defendant has shown that the government has violated the statutory time limits, the government may attempt to prove that the indictment or trial was still timely. The government will do so under subsection 3161(h)(3) of the Act, 141 which allows the tallying to stop in certain circumstances. There are many provisions in the statute ( stop the clock provisions) that exclude certain periods of time in determining whether the indictment was filed in a timely or the trial was commenced on time. 142 No delay because of general congestion in court, lack of diligent preparation, or failure to obtain witnesses on the part of the prosecution may be excluded. 143 However, the wide variety of the provisions that stop the clock will generally allow a delay longer than the statutorily defined time period without violating your right to a speedy trial. A recent Supreme Court case has held that the prosecutor may not rely on the defendant s promise not to raise a speedy trial claim, when scheduling the trial. 144 In other words, even if you believe that you intentionally opted out of your speedy trial rights before the trial, you are not prevented from raising them during trial. 145 Importantly, the fact that there has been no violation of the federal Speedy Trial Act does not prevent the court from finding that you have been denied your Sixth Amendment right to a speedy trial New York s Speedy Trial Statute Your right to a speedy trial under New York law is governed by Sections and of the New York Criminal Procedure Law. 147 Although the New York Constitution does not expressly contain a speedy trial clause, you still have a state constitutional right to a speedy trial under the guarantee of due process. 148 When filing your claim that you have been denied a speedy trial, you should raise the constitutional provisions as well as the statutory ones in order to preserve your right to a speedy trial. As for the state constitutional right to a speedy trial, the New York courts have articulated the factors to be balanced in determining whether your right has been violated. The factors to be considered in the test are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) (2d Cir. 1993) (finding that lower court did not abuse its discretion in finding that unexcused delays in filing indictments did not justify dismissal of indictments with prejudice where narcotics charges were very serious and where defendants had consented to delays), and United States v. Wells, 893 F.2d 535, 538 (2d Cir. 1990) (finding that charge of impersonating federal officer was serious offense for purposes of determining whether dismissal should be without prejudice), with United States v. Clymer, 25 F.3d 824, (9th Cir. 1994) (dismissing indictment with prejudice despite seriousness of drug charge where defendant was detained under cloud of pending indictment for 522 days, at least five months of which was not excludable) U.S.C. 3162(a)(2) (2008) U.S.C. 3162(a)(2) (2008) U.S.C. 3161(h)(1) (9) (2008). The following are some examples of the periods of delay that are included in this subsection: (1) any period of delay resulting from other proceedings concerning the defendant, including a delay resulting from any proceeding to determine the mental competency or physical capacity of the defendant, from trial with respect to other charges against the defendant, from any pretrial motion (from the filing of the motion through the conclusion of the hearing on the motion), from the removal of the case to another district, or from any delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court; (2) any period of delay during which the prosecution is deferred pursuant to written agreement with the defendant, for the purpose of allowing the defendant to demonstrate his good conduct; (3) any period of delay resulting from the absence or unavailability of the defendant or an essential witness U.S.C. 3161(h)(8)(C) (2008) Zedner v. United States, 547 U.S. 489, 509, 126 S. Ct. 1976, 1990, 164 L. Ed. 2d 749, 769 (2008) Zedner v. United States, 547 U.S. 489, 501, 126 S. Ct. 1976, 1985, 164 L. Ed. 2d 749, 764 (2008) (holding that the public interest cannot be served if defendants may opt out of the Act ) U.S.C (2008) (stating that [n]o provision of [the Speedy Trial Act] shall be interpreted as a bar to any claim of denial of speedy trial as required by the 6th Amendment) N.Y. Crim. Proc. Law (McKinney 2003 & Supp 2008) N.Y. Const. art. I, 6; People v. Singer, 44 N.Y.2d 241, 253, 376 N.E.2d 179, 186, 405 N.Y.S.2d 17, 25 (1978) (holding that unreasonable delay in prosecution violates the defendant s state constitutional right to due process of law and noting that the State due process requirement of a prompt prosecution is broader than the right to a speedy trial guaranteed by statute (citation omitted) and the Sixth Amendment. ). But see People v. Vernace, 96 N.Y.2d 886, 888, 756 N.E.2d 66, 68, 730 N.Y.S.2d 778, 780 (2001) (holding that good faith determinations to delay prosecution with cause, will not deprive defendant of due process even though there may be some prejudice to defendant. ).

18 946 A JAILHOUSE LAWYER S MANUAL Ch. 34 whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that your defense has been impaired by the delay. 149 Under the state speedy trial statute, the amount of time in which the state must bring you to trial depends on the offense with which you are charged. For each level of offense, there are two time periods. Which of the two time limits the state has violated will determine the remedy that is available to you for the violation. Type of Offense Short Period 150 Long Period 151 Felony Ninety days Six months Misdemeanor punishable for more than three months Misdemeanor punishable for less than three months Thirty days Fifteen days Ninety days Sixty days Violation Five days Thirty days If the government has violated the short period for the offense for which you are charged, you must be released from detention, 152 unless you are being held for another offense or have previously violated the terms of your release. 153 The short time period begins when you are committed to the custody of the sheriff. If the government has failed to bring you to trial within the long period, the charges against you must be dismissed. 154 The long time period begins on the day following the commencement of the criminal action, which is the filing of the first accusation. 155 For both the short and long time periods, the elapsed time and the excludable time periods will be related back to the first day the time period began, even when new accusations have been filed to replace the original charges. 156 Like the federal Speedy Trial Act, the New York statute also provides that certain periods of time before you are brought to trial are not included in determining whether your right to a speedy trial has been violated. 157 There are also statutory limitations on when the relief described above is available to you. 158 For example, no remedies are available if the state was ready for trial before the time period expired, but is now not ready due to an exceptional fact or circumstance. 159 Additionally, the time limits do not apply if you are 149. People v. Taranovich, 37 N.Y.2d 442, 445, 335 N.E.2d 303, 306, 373 N.Y.S.2d 79, (1975); People v. Vernace, 96 N.Y.2d 886, , 756 N.E.2d 66, 67, 730 N.Y.S.2d 778, 779 (2001) N.Y. Crim. Proc. Law 30.30(2)(a) (d) (McKinney 2003 & Supp 2009) N.Y. Crim. Proc. Law 30.30(1)(a) (d) (McKinney 2003 & Supp 2009) N.Y. Crim. Proc. Law 30.30(2) (McKinney 2003 & Supp 2009). Note that even if release is required, the judge can require you to meet bail or impose other conditions on your release. The judge can also order your redetention if you violate those conditions. N.Y. Crim. Proc. Law 30.30(3)(c)(iii) (McKinney 2003 & Supp 2008). In practice, this may be known as a 30:30 release. For more information about the conditions which can be imposed on your pretrial release, see Part C(2) of this Chapter N.Y. Crim. Proc. Law 30.30(3)(c) (McKinney 2003 & Supp 2009) In practice, this may be known as a 30:30 dismissal N.Y. Crim. Proc. Law 30.30(1) (McKinney 2003 & Supp 2009) N.Y. Crim. Proc. Law 30.30(2) (McKinney 2003 & Supp 2009) N.Y. Crim. Proc. Law 30.30(4) (McKinney 2003 & Supp 2009). These exceptions function the same way as the similar federal provisions discussed in Part D(2) of this Chapter. Some examples of excludable time under this statute include: (a) certain pretrial procedures; (b) continuances granted at the defendant s request or on his consent; (c) when the defendant cannot be found or has escaped from custody; (d) when the defendant is without counsel through no fault of the court; (e) under exceptional circumstances when the government needs more time to prepare. See, e.g., People v. Reed, 19 A.D.3d 312, 318, 798 N.Y.S.2d 47, 54 (1st Dept. 2005) (holding that the period of time caused by the prosecutor s adjournment could count toward the defendant s speedy trial claim where the defendant did not request or consent to that adjournment) N.Y. Crim. Proc. Law 30.30(3) (McKinney 2003 & Supp 2008) N.Y. Crim. Proc. Law 30.30(3)(b) (McKinney 2003 & Supp 2008). For example, a court may decide that the state encountered an exceptional circumstance if evidence material to the state s case suddenly became unavailable, despite the district attorney s efforts to obtain the evidence, if it is reasonable to believe that the evidence will become available in a reasonable time. Evidence is material when it has some logical connection with the facts of consequence or the issues. Black s Law Dictionary 598 (8th ed. 2004).

19 Ch. 34 THE RIGHTS OF PRETRIAL DETAINEES 947 charged with criminally negligent homicide, 160 first 161 or second-degree 162 manslaughter, or first 163 or second-degree 164 murder. 165 If you feel that you have been denied access to a speedy trial, you must raise this issue before the trial begins or before you before plead guilty. 166 The claim will not be preserved for appeal if not properly raised in the trial court. 167 Unlike statutory speedy trial claims, however, properly asserted constitutional speedy trial claims are not waived by a guilty plea or by making a plea bargain agreement. 168 Most speedy trial claims are raised in pretrial motions (such as a motion to dismiss) or state habeas corpus petitions. 169 If you are represented by counsel, confer with your attorney as to which procedure best fits your case. E. Conditions of Pretrial Detention While you are held in a prison or other detention facility prior to or during trial, you are a pretrial detainee. As a pretrial detainee, you have, at minimum, the same rights as a convicted prisoner. 170 Unlike a post trial prisoner, however, you have not been convicted of any crime thus in some cases you may be entitled to a higher level of constitutional protection. The leading case on the rights of pretrial detainees is Bell v. Wolfish. 171 Wolfish made clear that the most important difference between pretrial detainees and convicted prisoners is that pretrial detainees cannot be punished. Convicted prisoners often contest prison conditions on the basis that they violate the Eighth Amendment prohibition on cruel and unusual punishment. Pretrial detainees cannot be punished at all because they have not been convicted. To punish a pretrial detainee who has been convicted of no crime would violate the Due Process Clauses of the U.S. Constitution. 172 Generally, claims brought by prisoners or pretrial detainees about conditions of detention are brought under one of three constitutional amendments. Convicted prisoners are protected by the Eighth Amendment s ban on cruel and unusual punishment. Pretrial detainees in federal facilities are protected by the Due Process Clause of the Fifth Amendment. Pretrial detainees in state facilities are protected by the Due Process Clause of the Fourteenth Amendment. The protections of the Fifth and Fourteenth Amendments against poor detention conditions are otherwise equal. Pretrial detainees have at least the same rights under the Due Process Clause as convicted prisoners do under the Eighth Amendment; thus, as a pretrial detainee you may use cases which involve the Eighth Amendment, as long as you point out that your argument is based on one of the due process clauses. The right not to be punished without due process of law is one of the constitutional rights that protect you while you are detained. Pretrial detainees are entitled to the same constitutional protections as 160. N.Y. Penal Law (McKinney 2009) N.Y. Penal Law (McKinney 2009) N.Y. Penal Law (McKinney 2009) N.Y. Penal Law (McKinney 2009) N.Y. Penal Law (McKinney 2009) N.Y. Crim. Proc. Law 30.30(3)(a) (McKinney 2003 & Supp 2009) N.Y. Crim. Proc. Law (2) (McKinney 2007); N.Y. Crim. Proc. Law (2) (McKinney 2007); People v. Cintron, 7 A.D.3d 827, 828, 776 N.Y.S.2d 919, 919 (3d Dept. 2004) (holding defendant s guilty plea waived appellate review of his statutory right to speedy trial) See People v. Bancroft, 23 A.D.3d 850, , 803 N.Y.S.2d 824, (3d Dept. 2005) (holding that the right to a speedy trial may be waived where a defendant fails to raise the claim in either a pretrial motion or otherwise register an appropriate objection on this ground throughout the course of his prosecution ) See People v. Savage, 54 N.Y.2d 697, 698, 426 N.E.2d 468, 468, 442 N.Y.S.2d 974, 975 (1981) (noting that a guilty plea does not waive the constitutional speedy trial right); People v. Blakley, 34 N.Y.2d 311, 313, 313 N.E.2d 763, 764, 357 N.Y.S.2d 459, (1974) (dismissing defendant s indictment because plea bargain should not have been made in exchange for withdrawal of claim of speedy trial violation); People v. Thorpe, 160 Misc. 2d 558, 559, 613 N.Y.S.2d 795, 796 (2d Dept. 1994) (holding that a constitutional speedy trial claim is not waived by a guilty plea ) For more information on state habeas corpus petitions, see JLM, Chapter 20, New York Habeas Corpus- New York, Florida and Texas. Note that the New York Court of Appeals has held that habeas corpus petitions asserting a denial of the defendant s right to speedy trial cannot be brought during a pending criminal proceeding. People ex rel. McDonald v. Warden, 34 N.Y.2d 554, 555, 310 N.E.2d 537, 537, 354 N.Y.S.2d 939, 939 (1974) See Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447, 472 (1979) ( [P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners. ) Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) See Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) ( [U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. ).

20 948 A JAILHOUSE LAWYER S MANUAL Ch. 34 convicted prisoners. 173 Even if a condition of pretrial confinement cannot be shown to constitute punishment in violation of due process, it may still violate one of your other constitutional rights. If the conditions of your detention would violate the constitutional rights of a convicted inmate, they violate your rights as a pretrial detainee. To find out what these rights are, you should consult the other chapters of the JLM, which explain the rights of convicted inmates. These rights include, among others, freedom of religion and speech under the First and Fourteenth Amendments, the right to be free from unreasonable searches and seizures under the Fourth Amendment, and the right under the Equal Protection Clause not to be discriminated against on the basis of race. A chapter which may be helpful is Chapter 15, Using 42 U.S.C and 28 U.S.C to Obtain Relief From Violations of Federal Law. Immigrant or foreign pretrial detainees should also consult Chapter II of the JLM ICA Supplement. While the law is unclear whether the Fourteenth and Fifth Amendments give pretrial detainees a higher level of constitutional protection than convicted prisoners, the Supreme Court has repeated that pretrial detainees are entitled to at least the same rights as those enjoyed by convicted prisoners. 174 Some courts have found that pretrial detainees may enjoy greater rights than convicted prisoners. However, most courts have found that the same standards apply to convicted and pretrial detainees alike. These cases are discussed in more detail below. The rest of Part E focuses only on areas of prison life where there may be a difference between the rights of pretrial detainees and those of convicted prisoners. Section 1 deals with your right not to be punished. Section 2 discusses medical care, protection from violence, and food and housing. Section 3 examines your right not to be subjected to excessive force. Your right of access to counsel is covered in Section 4, and Section 5 examines your right to vote. 1. The Right Not to be Punished (a) Punishment for Underlying Crime The purpose of detaining you prior to or during trial is not to punish you, but to ensure your presence at trial. 175 Thus, under Bell v. Wolfish, while you are a pretrial detainee, you cannot be punished for the crime of which you are accused. 176 Under Wolfish, therefore, the central question is whether the conditions to which you are subject constitute punishment. 177 (i) Intent to Punish The most direct way to show that the conditions are punitive is to show that they were intended to punish you. For example, in a case involving a pretrial detainee who was confined in a restraint chair for eight hours after fighting with prison guards, the court held that it was for the jury to determine whether the guards confined the prisoner in the chair for the purpose of maintaining prison order and security or for the purpose of punishment. If the guards intent was to maintain order, then their actions were constitutional; if their intent was to punish, then their actions violated the Due Process Clause of the Fourteenth Amendment Bell v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 1877, 60 L. Ed. 2d 447, 472 (1979) ( [P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners. ) See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605, 611 (1983) (holding that the due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner. ) Bell v. Wolfish, 441 U.S. 520, 536, 99 S. Ct. 1861, 1873, 60 L. Ed. 2d 447, 467 (1979) Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) ( [U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. ). You also cannot be treated in a way that is intended to promote the traditional aims of criminal punishment. Bell v. Wolfish, 441 U.S. 520, 539, 99 S. Ct. 1861, 1874, 60 L. Ed. 2d 447, 469 n.20 (1979) ( Retribution and deterrence are not legitimate nonpunitive governmental objectives. ) See Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872, 60 L. Ed. 2d 447, 466 (1979) ( In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against the deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. ) Fuentes v. Wagner, 206 F.3d 335, 342, 346 (3d Cir. 2000) (holding that while the pretrial detainee may have shown that the prison officials overreacted in their use of a restraint chair, he still failed to show that their intentions were punitive, i.e., maliciously and sadistically to cause harm ).